He Ain't The Law

I think that Chuck Schumer strikes at the heart of Snoopgate better than any other politician I've seen in this NY Times piece:

"A discussion, perhaps a change in the law," he said, "those are all legitimate. Unilaterally changing the law because the vice president or president thinks it's wrong, without discussing the change, that's not the American way."

And that's about it. Partisan Republicans would have you believe that the legal contention in this issue is over whether or not FISA was constitutional. If it is, what Bush did was illegal. If it isn't, one could make the argument. They argue the latter.

But here's the thing: FISA, currently, is the law. And it's not an incidental law with language that accidentally enlarges it to apply to this case. Congress passed it specifically to constrain executive authority over surveillance matter. Specifically to outlaw, well, this.

When Congress passes a law that certain groups think to be unconstitutional, there's a procedure worked out for pursuing resolution. It involves a handful of old dudes and a couple old women who wear long robes and issue complex legal opinions on constitutional matters. And until they rule one way or the other (or pass an injunction), the controversial legislation remains legally binding. That's why a member of NORML can't walk down the street smoking a spliff and a wingnut mayor in Mississippi can't prosecute women who have abortions. Laws are in effect until they are repealed or declared invalid by the Supreme Court. Whatever you think of FISA's legality, it was neither repealed nor declared invalid by the Supreme Court. It was in effect.

Bush's actions were illegal. And that's all there is to that. You can argue that they were justified, or righteous, or that the legislative structure is outmoded and wrong, but none of that changes the fact that they were in flagrant violation of the law of the land, a law the White House could have attempted to amend or asked the Supreme Court to invalidate. Which means that not only were Bush's actions illegal, but he offered no attempt to make them legal. It wasn't simply that he thought the law outdated, it's that he believed it didn't, and shouldn't, apply to him. As Duncan put it, Bush's position, summed up, is "I am the Law." And, frankly, it doesn't get much more unAmerican than that.